Posts classified under: AZ

After filing your initial petition and supporting docs and serving them upon the other party, that party will have a specified amount of time to respond to the Petition and make an appearance in the case (usually 20 days if they live in state and 30 days if they live out of state).  If the party fails to respond or make an appearance on the case after the applicable response time, a party can proceed by default. An Application and Affidavit for Default is a legal document filed with the Court to initiate the Default process. When this document is properly completed and filed, Default has been applied and entered. The Default will be effective ten (10) Court business days after the filing of the completed document, unless the Respondent files an Answer/Response or otherwise defends before the ten (10) Court business days expires. After expiration of the ten (10) Court business days, the filing party may request a default hearing or default judgment pursuant to Arizona Rules of Family Law Procedure 44(a). The Application and Affidavit for Default will declare under penalty of perjury that:

1. The Respondent has signed an “Acceptance of Service” and has accepted service of the “Summons,” Complaint or Petition and other supporting documents. The Respondent has not filed an “Answer/Response,” or otherwise appeared or defended in the court case. Or that the Petitioner has properly served the Respondent according to law with the “Summons,” Complaint, or Petition and other supporting documents.  The Respondent has not appeared, answered, responded or otherwise defended in the time required by law.
2. The Respondent is not active duty military or has waived his or her rights under the Service Members Civil Relief Act.
3. That the Petitioner will mail a copy of the Application and Affidavit for Default to the Respondent at his or her current or last known address.
4. That the Petitioner understands that they will not qualify for Default if he or she fails to mail the Application and Affidavit for Default and/or fails to complete a Certificate of Mailing.

Not all divorce cases are contested. An “uncontested” divorce simply means that the parties have reached agreements on all issues in their divorce case. These issues often pertain to:

• Legal Decision-Making (divorce with children)
• Parenting Time (divorce with children)
• Child Support (divorce with children)
• Financial Issues
  • Distribution of Debts and Assets
  • Distribution of Retirement Benefits
  • Spousal Maintenance
  • Tax Issues
• Property Issues
  • Real Property
  • Personal Property
  • Community Property
  • Sole and Separate Property

When the parties agree to settle all the issues in their divorce case, they can file a Consent Decree outlining the specific terms and/or conditions of their agreements. A Consent Decree will often include other supporting documentation depending on the complexity of the issues settled. For instance, if minor children are involved, the parties will typically include a Parenting Plan Agreement. Additionally, if the parties have a lot of property issues that are being settled along with conditions on how the property is being distributed, they may include a Property Settlement Agreement. When the Consent Decree is properly filed, a judge will typically sign off on the Consent Decree making it an enforceable Order of the Court without further proceedings.

After the Petitioning party (hereinafter “Petitioner”) in a divorce case files and properly serves the other party (hereinafter “Respondent”) the Petition for Dissolution and all applicable supporting documents, the Respondent will have a certain amount of days to respond and/or make an appearance in the case after they are served (usually 20 days if they live in state and 30 days if they live out of state). If that party does not respond or otherwise make an appearance after expiration of that time period, the Petitioner can file an Application and Affidavit for Default. When the Application and Affidavit for Default is properly filed and served, Default has been entered and served. This will give the Respondent ten (10) Court business days to Answer/Respond or otherwise defend against the initiated action. If the Respondent fails to appear the Petitioner may then request a default hearing (assuming that 60 days has elapsed since the date of service) or default judgment pursuant to Rule 44 of the Arizona Rules of Family Law Procedure. The Petitioner may obtain a default decree of judgment by motion under certain circumstances pursuant to Rule 44.1 and with a hearing pursuant to Rule 44.2. Biggest difference being that in order to finalize a default decree or judgment without hearing, the decree may not differ from what was requested in the original petition. Depending on the issues of the case and the type of service upon the Respondent the Default Decree will outline the Petitioner’s position/requests on:

• Legal Decision-Making (divorce with children)
• Parenting Time (divorce with children)
• Child Support (divorce with children)
• Financial Issues
• Distribution of Debts and Assets
• Distribution of Retirement Benefits
• Spousal Maintenance
• Tax Issues
• Property Issues
• Real Property
• Personal Property
• Community Property
• Sole and Separate Property

When filing any type of petition with the Court, the opposing party (hereinafter “Respondent”) must be provided notice of the legal matter being brought against him or her. This is achieved through strict “service” requirements as outlined by applicable Arizona rules of law and procedure. Depending on the issues involved, type of entity being served, and/or location of the Respondent, the service requirements may differ. Situations may also arise when the petitioning party (hereinafter “Petitioner”) cannot find or otherwise properly serve the Respondent. For example, the Petitioner may not know where the Respondent lives or works or the Respondent may purposefully dodge or refuse service. In these circumstances, the Petitioner may seek refuge of the Court by requesting that they be allowed to serve the Respondent by other means. Depending on the case, the Petitioner may request permission of the Court to serve the Respondent by mail or national courier service, by publication, etc. This formal request is called a Motion for Alternative Service and must be filed with the Court. The Motion for Alternative Service will often highlight the applicable rules of law and procedure, the attempts made by the Petitioner to properly serve the Respondent, the Petitioner’s inability to properly serve the Respondent despite a good faith effort to do so, as well as the request(s) of the Petitioner. Included with the Motion will be a proposed order that will be signed by the judge if they grant the motion.

A party to a legal proceeding may make a formal request to the Court that their address be protected (not revealed) to the public or the opposing parties in a case by filing a Motion for Protected Address. For the motion to be granted, there must be a reasonable belief that physical or emotional harm may result to the requesting party or their minor child(ren) if their address is disclosed. Furthermore, that party will also state if they have a valid Order of Protection in place and/or the reasons why they reasonably believe there will by physical or emotional harm to self or his/her minor children. Once properly filed, the Motion for Protected Address will either be granted or denied by the Judge within five (5) Court business days from the time the Judge receives the request.